| People v Thompson-Goggins |
| 2020 NY Slip Op 02496 [182 AD3d 916] |
| April 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mazai Thompson-Goggins,Appellant. |
Elena DeFio Kean, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 21, 2017, convicting defendant upon his plea of guilty of the crimes ofattempted criminal possession of stolen property in the third degree and attempted grandlarceny in the third degree.
After it was determined that defendant was fit to proceed within the meaning of CPL730.10, and in full satisfaction of a four-count indictment and other pending charges inAlbany County, defendant agreed to plead guilty to the reduced charges of attemptedcriminal possession of stolen property in the third degree and attempted grand larceny inthe third degree. As part of the plea agreement, defendant also was required to waive hisright to appeal. In conjunction therewith, County Court apprised defendant of thepotential sentencing options—concurrent prison terms of 1
Defendant's challenge to the validity of the waiver of the right to appeal isunpersuasive. During the plea colloquy, County Court informed defendant that, althoughhe automatically forfeited various trial-related rights by pleading guilty, he ordinarily stillwould retain the right to appeal his case to a higher court. County Court went on toexplain, however, that the waiver of the right to appeal was a condition of defendant'splea agreement, and defendant indicated that he understood. After conferring withcounsel, defendant executed a written waiver of appeal in open court and advised CountyCourt that he understood that document and agreed to be bound by it. Under thesecircumstances, we find that defendant knowingly, intelligently and voluntarily waived hisright to appeal (see People vMorton, 173 AD3d 1464, 1465 [2019], lv denied 34 NY3d 935 [2019];People v King, 172 AD3d1763, 1763-1764 [2019]; People v Johnson, 170 AD3d 1274, 1275 [2019]). In lightof the valid appeal waiver, defendant's challenge to the factual sufficiency of his plea isprecluded (see People vHunt, 176 AD3d 1253, 1254 [2019]; People v O'Neill, 172 AD3d 1778, 1779 [2019], lvdenied 34 NY3d 953 [2019]).
Although defendant's challenge to the voluntariness of his plea survives his validappeal waiver, this argument is unpreserved for our review in the absence of anappropriate postallocution motion (see People v Lawton, 179 AD3d 1383, 1384 [2020]; People v Horton, 173 AD3d1342, 1343 [2019], lv denied 34 NY3d 932 [2019]). Further, defendant didnot make any statements during the plea colloquy that were inconsistent with his guilt,negated an element of the charged crimes or otherwise called into question thevoluntariness of his plea and, therefore, the narrow exception to the preservationrequirement was not triggered (see People v Lobao, 178 AD3d 1238, 1239 [2019];People v Hunt, 176 AD3d at 1254). Finally, and as noted previously, defendantwas expressly afforded the opportunity to withdraw his plea at sentencing and declined todo so (see e.g. People vMartin, 125 AD3d 1054, 1054 [2015], lv denied 26 NY3d 932 [2015];People v Stone, 105 AD3d1094, 1094 n [2013]). In any event, nothing on the face of the plea colloquysuggests that defendant's claimed mental health issues hampered his ability to enter aknowing, intelligent and voluntary plea of guilty. Defendant's remaining arguments, tothe extent not specifically addressed, have been examined and found to be lacking inmerit.
Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:Defendant's subsequentpro se motion to vacate his sentence pursuant to CPL 440.20 was denied by CountyCourt, as was defendant's application for permission to appeal that denial to this Court.